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Because cases tend to go away rapidly over time, either through settlement or on the merits, attorneys tend to be less experienced with motions that come up later in the case, particularly things that come up after the judgment (other than post-trial motions), or even after appeal.

One example is a motion to alter or amend a judgment under FRCP 59(e). You just don't see them that often. So I thought it was worth talking about a Rule 59(e) motion that the Court addressed last week.

In The United States of America v. Gilead Sciences, Inc., C.A. No. 19-2103 (D. Del.), the plaintiff argued that the defendant induced doctors to infringe a drug patent. The defendant won a jury verdict of no direct infringement by the doctors, and that the patent was invalid.

After post-trial motions, the Court reversed the finding of no direct infringement—but it did not go so far as to find indirect infringement as a matter of law. It then entered judgment as to infringement as follows:

Judgment is entered in favor of Plaintiff and against Defendants as to direct infringement of the asserted claims 1 for both [accused products].

Id., D.I. 498.

Do you see a problem there? The defendant sure did. They felt that the Court had entered judgment "against Defendants as to direct infringement"—but plaintiff had never alleged that the defendants directly infringed, only that they had induced infringement. It was the doctors that directly infringed.

The defendants filed a Rule 59(e) motion to "amend or correct" the judgment. The defendants argued that, under Third Circuit law, Rule 59(e) can be used "to correct clear error of law or prevent manifest injustice." Id., D.I. 500 at 3 (citation omitted).

The Court, however, rejected the motion in two short lines:

Defendants’ Motion to Amend Judgment Pursuant to Fed. R. Civ. P. 59(e) . . . is DENIED. Defendants have not satisfied the standard for granting a Rule 59(e) motion. See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010).m

Id., D.I. 503.

But wait! The Court noted that it could correct the judgment sua sponte under FRCP 60(a), rather than FRCP 59:

Pursuant to Rule 60(a), a court may sua sponte correct an oversight or omission in a judgment. To the extent that the Final Judgment . . . omits context and suggests it is inconsistent with this Court’s Memorandum Opinion . . . , the Court will clarify its judgment as to direct infringement. This correction does not affect the substantive rights of the parties and required no “cerebration or research into the law or planetary excursions into facts[.]” See Pfizer Inc. v. Uprichard, 422 F.3d 124, 130 (3d Cir. 2005).

Id. Instead of correcting an error of law, Rule 60(b) allows the Court to "correct a clerical mistake or a mistake arising from oversight or omission," either on a motion or on its own.

The Court then issued a new judgment, specifically setting out that it found that the doctors, not the defendant, literally infringe.

Here is a comparison. Old:

Judgment is entered in favor of Plaintiff and against Defendants as to direct infringement of the asserted claims[] for both [accused products].

Id., D.I. 498.


Judgment is entered in favor of Plaintiff and against Defendants that one or more patients or physicians (either separately or jointly) directly infringed the asserted claims[] for [both accused products].

Id., D.I. 504.

Given that Rule 60 allows a party to ask the Court to correct a "clerical mistake" without having to argue that the Court made an error of law, it's probably a good idea to use that method when possible, or use both, rather than pursuing a correction solely under Rule 59.

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